UNC-TV lays down
press shield

As ‘state agency,’ network surrenders reporter’s materials

Published in Current July 26, 2010By Dru Sefton

Is a public TV station licensed to a state university system an agency of the state if a legislative committee says so? Attorneys and management at North Carolina’s UNC-TV network conceded that it is, and earlier this month obeyed a General Assembly committee’s demands that it turn over reporting materials from a journalist’s investigation into the licensing of hydroelectric dams by aluminum giant Alcoa.

The acquiescence by the University of North Carolina Center for Public Television could have ramifications for public stations’ newsgathering at a time when some are expanding their roles in journalism.

At stake is the First Amendment independence of pubcasters across the country licensed to states and state universities. Of the 584 licensees receiving operating funds from CPB, 214 in public radio and 76 in public TV are universities — a majority state-owned — or other units of state governments.

After seeing UNC-TV comply with the legislative committee’s demand, Alcoa — the world’s largest aluminum producer and subject of investigations by the lawmakers as well as UNC-TV — filed an open records request for the reporter’s materials. “UNC-TV has openly acknowledged that it is a state agency” and thus must comply, Alcoa said in a statement July 9.

Network spokesman Steve Volstad said last week that no one at UNC-TV would comment for this story because station attorneys were studying legal issues surrounding Alcoa’s request. “Our attorneys’ one statement is, ‘We will abide by the letter of the law,’” Volstad told Current. A call to General Manager Tom Howe’s office was referred back to Volstad.

UNC-TV’s actions could have “a snowball effect” on other legislatures, said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press. Although the actions thus far may not amount to a legal precedent, the legislators’ tactic could inspire imitation by officials in other states with state-operated stations.

“It’s worrisome,” Leslie said.

The circumstances and events leading to this point make for an odd and complicated tale featuring mysterious broadcast disclaimers, a commercial TV exec attempting to intervene with the legislature on the pubcaster’s behalf, a state senator who crafted North Carolina’s journalist shield law demanding reporting materials, and four old dams on the Yadkin River.

In 1915 Alcoa began to build dams on the river to provide power for aluminum smelting. The dams were licensed by the federal entity that later became the Federal Energy Regulatory Commission (FERC). In 1958, Alcoa obtained licenses again, for 50 years. The smelting plant closed in 2007, but the corporation continued to operate the dams and sold the electricity. Alcoa applied for license renewal in 2008.

FERC said it wouldn’t consider the request until a controversy over Alcoa’s state water-quality permit was settled. Several parties including famous green activist Erin Brockovich opposed Alcoa’s new license, citing hazards of smelting waste. Last fall the state also filed papers with FERC seeking control of the Yadkin hydroelectric project “for the benefit of the people of North Carolina.” Translation: The state is after the millions of dollars in power bills, according to one local newsman.

On June 30, the state Senate’s judiciary committee, examining the matters, sent a letter to UNC network chief Howe, as well as a subpoena to the network. Sen. Fletcher Hartsell (R) committee chairman, directed the station, “a state agency,” to give the committee “all footage (including all interviews, B-roll and camera masters)” regarding Alcoa’s activities, due July 5, just five days before the legislature was to adjourn for the year.

UNC-TV Senior Legislative Correspondent Eszter Vajda received her own subpoena.

Vajda told Current she began delving into the Alcoa dams license and related environmental issues two years ago. Vajda, a UNC-TV employee since 2004, was born in Budapest and had begun her broadcast career after a stint in the Peace Corps. Before UNC, she reported for a talk radio station in Lowell, Mass., and ABC-TV affiliates in Calumet, Mich., and Burlington, Vt.

The network planned to run Vajda’s reporting as three 20-minute segments on its nightly North Carolina Now. In interviews, widows of Alcoa workers alleged links between their husbands’ cancer deaths and the smelting plant — quite different fare from the show’s more typical features on teenage Civil War reenactors and moonshine festivals.

Vajda said she told Howe and Shannon Vickery, UNC-TV production director, that the story was far too complex to fit the allotted time, but they said there was no funding to extend the project. So Vajda said she continued working on the documentary at home in her spare time, while additional sources brought her information. When the Senate committee asked to see all her materials, including unedited film, UNC-TV turned it over, and Vajda, on the advice of her own attorney, surrendered her incomplete film. (She posted it on Vimeo.)

On July 6 — the day UNC-TV aired the first Alcoa segment — about a dozen senators viewed Vajda’s film. Afterward, Hartsell said on the Senate floor that they didn’t learn anything from the documentary that the state couldn’t have found out on its own.

Hartsell’s role in the futile legislative fishing expedition was ironic. In 1999 he helped write the state’s shield to protect journalists. Under the shield law, one of only three ways to compel a journalist to surrender reporting materials in North Carolina is by showing in court that the information cannot be obtained from other sources.

Hartsell did not return calls from Current before the deadline for this story.

“Really terrible” consequences

Jim Goodmon, chief exec of Capitol Broadcasting Company’s WRAL-TV in Raleigh, told Current he is a good friend of Howe’s, as well as a strong supporter of pubcasting in the region — “a longtime significant contributor,” as he said. Indeed, WUNC-FM is housed in the James F. Goodmon Public Radio Building.

When Howe heard a subpoena was imminent, “he called and we talked,” Goodmon said. “My view was: No, you can’t do this [turn over materials]. There would be really terrible long-term consequences.” Goodmon tried to convince Howe that he should go to jail before turning anything over.

But Goodmon also realized Howe was in a tough spot: University attorneys were handling the matter, and they informed Howe that North Carolina’s reporter shield law did not apply to state agencies. “He made the decision based upon the advice he was getting,” Goodmon said. Goodmon personally tried to sway three legislators, and spoke with aides to University President Erskine Bowles.

Connie Walker, g.m. of WUNC-FM, was particularly upset with the pubTV network. After Howe and Vajda handed materials to the legislators, Walker sent a memo reminding the radio station’s staff that while the TV net belongs to the 16-school University of North Carolina system, the radio station is separately licensed to the university’s main campus in Chapel Hill.

The radio station will “fight ANY attempt to obtain the reporting records of station journalists, under the North Carolina shield law,” Walker told her staff in the memo.

“This was carefully vetted with our UNC attorney in terms of the apparent conflict between the shield law and that fact that we are state employees who are subject to open records law.The attorney believes we would probably win a court battle; this is why I spent a lot of time exploring this several years ago, so we could be fairly certain of our standing.”

“Seriously,” Walker’s memo concluded, “I am ready to go to jail in order to protect the integrity of the journalists at WUNC Radio.”

“We’re trying to view all this as not precedent-setting for us,” Walker told Current. “We don’t want everybody to automatically conclude that we have to turn over records.”

UNC-TV has run into earlier problems with editorial decisions. In 2000 a reporter/producer quit to protest what he saw as the station’s positive and excessive coverage of DTV conversion issues and a higher education bond issue; the station and the university had financial interests in both. Howe himself had assigned the coverage (Current, Aug. 28, 2000), rejecting the concept of editorial separation between management and reporters. At that time Howe told Current, “There’s not going to be a firewall here or at any public television station I’m at.”

And earlier this year, the News & Observer in Raleigh reported UNC-TV had sought funding from a quasi-governmental organization, the Golden LEAF Foundation, while promising its programming would “raise the visibility of the work being accomplished” by Golden LEAF in helping the state’s tobacco regions reduce their dependence on the crop. The station has received more than $300,000 from the foundation over the past two years. As the newspaper noted, most of the 12 “sunny stories” produced so far feature Golden LEAF projects.

Vickery told the newspaper — and has stressed to UNC-TV staff, Vajda said — that the network considers itself “an information provider” and not a news station.

On July 16, Vajda released a statement independent of UNC-TV. It said in part that she found herself “thrust into unexplored territory” with the subpoena for her files. She wants to continue reporting the story, she said. “This is why I became a journalist — to ‘sweep dirt from under the rug,’ so to speak, to bring information to the public that they don’t have.”

Complex, evolving issues

Retaining First Amendment protections is difficult enough for privately owned newsgatherers, and doubly hard for government-owned broadcasters. Case law regarding the relationships among state shield laws, open records acts and the First Amendment is complicated and continues to evolve.

Robert Corn-Revere, a First Amendment lawyer in Washington, D.C., examined the legal scene in 2002 for the Organization of State Broadcasting Executives, publishing the paper “Freedom of Expression in Public Broadcasting.”

State-operated pubcasters “have special status for what I call, for lack of a better term, ‘state-owned, state-funded expressive institutions,’” Corn-Revere told Current. The category would also include, say, a student-run newspaper at a state university, a public library and a public museum.

In 1998, the U.S. Supreme Court resolved a landmark case in the area, ruling in favor of First Amendment rights for the state-operated Arkansas network.

A candidate in the 1992 race for a congressional seat in the state had charged in a lawsuit that the Arkansas Educational Television Network violated his free-speech rights by refusing to include him in a broadcast debate.

The high court ruled 6-3 that the network’s debate decision “was a reasonable, viewpoint-neutral exercise of journalistic discretion.” Current noted (May 25, 1998) that the network “survived the scrutiny because it had decided well before the debates, in cooperation with the state’s Associated Press bureau chief, to open the debate only to major party candidates plus those with strong public support.”

By establishing journalistic guidelines, AETN demonstrated its newsgathering independence from the state. But even that “best practices” approach could backfire. David Smallman, primary outside counsel to the Investigative Reporters and Editors (IRE) association, said such guidelines can be used against journalists — “as a sword instead of a shield.” Litigators could force reporters to testify whether they had ticked off every item in their stations’ guidelines, Smallman said. Reporting “rules” often can’t cover the “nuance and subtleties of the newsgathering process,” he noted.

In his opinion, Smallman said, the attorneys advising UNC-TV took an “incorrect approach” in deciding that the network had to give in to the legislators’ demands. Even if a government entity argues that a state-owned pubcaster is subject to open records laws, that “doesn’t allow fishing expeditions” by lawmakers, he said. “To the extent that were the interpretation, one might argue it’s unconstitutional.” Journalists see such broad searches as a threat to press freedom.

UNC-TV’s actions will be seen as an unusual mistake, a deviation from the norm and not a precedent, Smallman predicted. “As a practical matter, I don’t think other media lawyers who represent public broadcasters would look at this as anything other than a poorly reasoned and incorrectly applied analysis.”

Especially troublesome to Smallman was what he called a “highly unusual” disclaimer broadcast on North Carolina Now, apparently intended to distance the network from responsibility for the dam reports.

The statement appeared at the beginning and end of Vajda’s second and third segments: “For the first time in its network’s history, UNC-TV has made the decision to refrain from exercising its customary editorial review over an individual reporter’s project. The reason for this unusual step is to alleviate any concerns surrounding unfounded and untrue allegations of inappropriate suppression by UNC-TV management of the reporter’s ability to tell this important story.”

Smallman doubts the disclaimer would distance network management from the project. “Simply saying the story wasn’t vetted doesn’t absolve the station’s responsibility,” he said.

Vajda said she saw the disclaimer for the first time when the segments aired, and does not know what it means. She’s especially puzzled because while they were editing, she and the cameraman were instructed by an executive producer to put their work on a DVD “for management to review,” Vadja said. She followed the instruction.

UNC-TV opted for another unusual step as it struggled with a potential hot potato of a story. After the network began airing the three-piece report, Howe brought the segments to the university’s journalism department, according to j-professor Leroy Towns, to determine whether the programs met accepted journalistic standards. Towns and two other professors had started to compile their response when Howe suddenly rescinded the request, without explanation.

“It’s all very bizarre,” Towns told Current.

As the eventful month ends, things seem to be settling down at the station and statehouse. The General Assembly doesn’t reconvene until January. UNC-TV’s Alcoa segments and disclaimers remain on the station website (unctv.org/ncnow/alcoa/).

Vajda has returned to work after taking some time off. Neither Howe nor Vickery has said anything to her about the Alcoa coverage. She said she continues work at home on what she now considers her documentary.

Gov. Bev Perdue signed a bill forming the Uwharrie Resources Commission, which will take control of the four dams if Alcoa’s federal license bid is rejected.

And Laura Leslie, WUNC-FM’s statehouse reporter and president of Capitolbeat, the nationwide Association of Statehouse Reporters and Editors, is bracing for future journalistic challenges.

“The problem is perception,” she told Current. Why would a confidential source risk providing a tip, if the reporter might be pressed to reveal it to curious legislators or state officials? Will longtime sources now view WUNC-FM and UNC-TV reporters as state employees first and journalists second?

IRE attorney Smallman fears that he knows the answer. “If state legislatures start doing this — having public broadcasting stations declared state entities — then those folks are fair game.

(1) Journalist. – Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.

(2) Legal proceeding. – Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi‑judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.

(3) News medium. – Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.

(b) A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.

(c) In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:

(1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;

(2) Cannot be obtained from alternate sources; and

(3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.

Any order to compel any testimony or production as to which the qualified privilege has been asserted shall be issued only after notice to the journalist and a hearing and shall include clear and specific findings as to the showing made by the person seeking the testimony or production.

(d) Notwithstanding subsections (b) and (c) of this section, a journalist has no privilege against disclosure of any information, document, or item obtained as the result of the journalist's eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.

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Web page posted July 27, 2010
Copyright 2010 by Current LLC

Pictured: Narrows Dam (upper photo) is one of four on North Carolina's Yadkin River that powered Alcoa's smelter in Badin, N.C. (lower photo). (Dam photo: N.C. Division of Water Resources. Plant photo by Joshua Mauldin (larger), released under Creative Commons license.)

A letter from the North Carolina Senate Judiciary Committee to UNC-TV General Manager Tom Howe demands the network's reporting materials for the Alcoa licensing story. On the site of Charlotte public radio station WFAE.